under construction
PROPERTY AND DEBT
quote from Webster v Webster, & my brief in Marriage of TH
also: update link to Judge Winsor's article
a drafting lesson to us all in this case, Jul. 25, 2006 - 31997-7 - Kimberly S. Bobbitt, Respondent v. Ronald K. Bobbitt, Appellant (get permanent cite)
Marriage dissolved in 2002; real property (& the duty to pay the mortgage* )
awarded to H. W remained liable on the mortgage, under the contracts clause of
our federal Constitution. H did not pay the mortgage. W (now ex-wife) got an
order to sell the property, which was sold in 2004.
Held: disso court had no post-disso authority to order H to sell his property. Appeals court blew off the argument that W's credit was being hurt without any real discussion.
(*I use "the mortgage" in the colloquial sense to mean the obligation to pay the
debt. I'm sure all us lawyer types know the mortgage is actually a separate
document, the security agreement.)
W's lawyer should have protected client by asking the trial court to award the
realty to H only on condition that W's liability on the mortgage be extinguished
by a timely novation or re-finance, otherwise realty to be sold.
This decision also has an interesting discussion of just how flagrantly partisan
a GAL can be and get away with it; all the trial judge has to do is say he/she
independently evaluated the evidence.
Among other things the GAL did wrong, the child in this case said he wanted to live with his dad, but the GAL wasn't interested in what the kid wanted or finding out why the boy felt that way.
Held: no abuse of discretion to deny dad's motion to remove the GAL.
Morals of the story:
(1.) you gotta win at the trial court level, and (2.) it can be a tough uphill fight if you don't win the battle for the GAL.
What got the GAL down on dad was he didn't pay her -- 'nuff said.
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